Cruel and Unusual - The End Of The Eighth Amendment

November 8, 2004 9:42 PM

Cruel and Unusual - The End Of The Eighth Amendment
It might seem at first that the rules for the treatment of Iraqi prisoners were founded on standards of political legitimacy suited to war or emergencies; based on what Carl Schmitt called the urgency of the ''exception,'' they were meant to remain secret as necessary ''war measures'' and to be exempt from traditional legal ideals and the courts associated with them. But the ominous discretionary powers used to justify this conduct are entirely familiar to those who follow the everyday treatment of prisoners in the United States—not only their treatment by prison guards but their treatment by the courts in sentencing, corrections, and prisoners' rights. The torture memoranda, as unprecedented as they appear in presenting ''legal doctrines . . . that could render specific conduct, otherwise criminal, not unlawful,'' refer to U.S. prison cases in the last 30 years that have turned on the legal meaning of the Eighth Amendment’s language prohibiting ''cruel and unusual punishment.'' What is the history of this phrase? How has it been interpreted? And how has its content been so eviscerated?
posted by y2karl (25 comments total)

Joan Dayan teaches at Vanderbilt University and is completing a book on slavery, incarceration, and the law of persons.
posted by y2karl at 9:43 PM on November 8, 2004

Why the small font?
posted by RavinDave at 10:35 PM on November 8, 2004

Because, RavinDave, y2karl is tired of being called out in MeTa for using up entire screenfulls of front page. :-D
posted by shepd at 11:28 PM on November 8, 2004

AND... he' special.
posted by Witty at 11:42 PM on November 8, 2004

There was a lot of protest and talk about the US prison system being cruel and unusual in the 60s. The point being that at the discression of your jailers you are likely to not just be inprisoned, but (generally as a male prisoner) you are likely to be raped and infected with STDs that will shorten your life dramatically.

In the 60s a lot of states were throwing those guilty of hallucinogen-related drug crimes, war protesters and organizers into maximum security blocs.

This makes civil disobediance a very difficult path to take because you fear a punishment that is out of scale with the crime.

In other news my friend who was arrested during the NYC RNC for more or less nothing was detained for most of two days, had his bike smashed up and has scars on his wrists from the zip-cuffs. No raping, though.
posted by n9 at 4:29 AM on November 9, 2004

n9: (generally as a male prisoner) you are likely to be raped and infected with STDs that will shorten your life dramatically

So much hyperbole so early in the morning...

And the evidence to support your contention that some large proportion of American male inmates in the 1960s were systematically raped by STD-infected unidentified persons for the purpose of infecting those prisoners with those STDs is precisely...where? Because if it is true, we should all hear about it and if it's not you probably just put your tinfoil hat back on and go smoke some more crack...
posted by JollyWanker at 5:44 AM on November 9, 2004

Yah, let's have a discussion about fonts rather than the 8th ammendment. So fuck you all.

And really, what's rape among friends and fellow inmates?
posted by Eekacat at 5:49 AM on November 9, 2004

Prisoner rights activists are part of the problem, not part of the solution, unfortunately.

Everyone knows what makes prisons unsafe: other prisoners. The solution is simple: reduce or eliminate contact between prisoners, particularly prisoners of different race, background, and gang affiliation/non-affiliation. Yet the activists regularly sue to prevent such solutions.
posted by MattD at 5:54 AM on November 9, 2004

MattD, that's because those solutions are usually understood as being racist and cruel. The cruelty comes from how hard it can be on a person's psychology to be in solitary confinement. Also, I think it's pretty simple to suggest that the dangers can be so easily teased out and understood and that everything will then be okay.
posted by kalessin at 5:58 AM on November 9, 2004

Why don't we have cameras on inmates at all times? If there is any violence between inmates, put the instigator in the Violent pool where they can achieve the sort of interaction they desire. Let the victim stay in the Nonviolent pool. Repeat until the inmates are sorted.
posted by beth at 7:51 AM on November 9, 2004

This is a fascinating article on an important topic, but I don't think it does prison reform any favors to categorize everything from the death penalty to "treatment as a non-human" as cruel and unusual. Prison reform will be achieved by chipping away at specific outrages, one at a time, with every legal means at our disposal. Prison rape, guard-on-prisoner and prisoner-on-prisoner violence, the mixing of violent and non-violent offenders... these are sins of the system that most Americans can be persuaded are worth reforming. What needs to be avoided, and what this article comes a little close to doing, is the mistake of the 1960s left, which was to turn prison reform into a global radical critique of American society. The country today is even less into that sort of thing today than it was then. Even though you and I may consider the treatment of Iraqi prisoners one of the most disgraceful episodes in modern American history, most people see it as the unfortunate outcome of the exceptional circumstances of war. We can see how its cruelty is of a kind with our domestic prison cruelty, but pointing out the similarities needs to be kept an academic exercise. This is an issue that can be addressed in terms both the left and right can appreciate. It can be Christianized. Mainstreamed. Radical reform isn't necessary. Even a small improvements in the lives of prisoners are huge.
posted by Faze at 8:02 AM on November 9, 2004

JollyWanker: If you want to look up the rate of rape and STD infection among proisoners in the late 60s early 70s feel free. At that point (and now) going to jail on federal counts or in some areas of the country meant that you would be raped and just as bad that your life would likely be cut short by any of several STDs.

Also, perhaps you could google any number of combinations of the words prison STD rape and infection. A good starting point for the documentation is to google 'prison rape 8th amendment.'

It is well documented that 1) protest prisoners (in the south, especially) were often put in facilities with violent criminals and that nonpolitical, nonviolent prisoners were locked in county away from violent criminals and that 2) These things are so well documented that they are included in several American History textbooks that I've had and I was a science major. Maybe you need a brace to keep that knee from, you know, jerking.
posted by n9 at 8:30 AM on November 9, 2004

These things are so well documented that they are included in several American History textbooks...

Sorry, n9, while I'm sympathetic to your remarks, I can see that as a science major, you might not get the humor of citing American History textbooks as if they were neutral and objective sources of information. That's like saying, "of course it's true, I read it in the Nation [or National Review, or the Weekly World News]".
posted by Faze at 8:40 AM on November 9, 2004

Hey, n9, thanks for completely avoiding the request to backup your assertion that American male prisoners were purposely raped with the intent to infect them with STDs during the 1960's. I'm not going to waste my time Googling to prove your ridiculous theory - since you can't or won't provide any background, I assume we're all free to dismiss your bullshit as just that.
posted by JollyWanker at 9:17 AM on November 9, 2004

Jolly --You have to be kidding me. Read the thread carefully and you will see that:

I didn't say that they were imprisoned such that they would get STDs. I implied that they were jailed such that they would be raped, but I didn't even say that -- I said that they were jailed with the violent offenders at the discression of the authorities, which were just the people they were protesting/commiting civil disobedience agains. The *result* was that many nonviolent offenders were raped and infected, which is certainly cruel and unusual punishment for protesting, dodging the draft or being in contempt of court. Because of this method of punishment, civil disobedience became a more difficult tactic to use.

You didn't ask me to back anything up, you just said that I was wrong, with absolutely no evidence to back yourself up, I might add. The documentation of this issue is very complete, if you don't feel like looking at it I guess I can understand, as it is very depressing.
posted by n9 at 11:19 AM on November 9, 2004

Prisoner Abuse: How Different are U.S. Prisons? (Human Rights Watch, May 14, 2004)

The Department of Justice’s Inspector General recently reported on the abuse Muslim men picked up after September 11 endured while detained at the federal Metropolitan Detention Center in Brooklyn. For example, officers slammed unresisting, shackled inmates into walls and mocked them during body-cavity searches. A lawsuit by one of the detainees alleges that one of the officers maliciously pushed a pencil into his anus.

Just this January, a videotape at a California facility captured two officers beating and kicking two inmates. One officer struck an inmate approximately twenty times in the face; another officer is shown kicking a handcuffed inmate in the head.

When Florida inmate Frank Valdez died in 1999, every rib in his body was broken, his corpse bore the imprint of boot marks, and his testicles were badly swollen; guards admitted having struggled with him, but denied they had used excessive force. They claimed most of his injuries had been “self-inflicted.”

In Maricopa County, Arizona, a sheriff who dresses male jail inmates in pink underwear introduced live “jail cam” broadcasts on the internet in 2000. Three cameras covered the holding and searching cells of the jail, including shots of strip searches, inmates bound in “restraint chairs,” and even, for a while, unobstructed views of women using the toilet. The broadcasts ended up being copied onto web porn sites.

Even detained children and youth are not immune from staff brutality and abuse. They too are kicked, beaten, punched, choked, and sexually preyed upon by adult staff. The Maryland State Police recently filed criminal assault charges against staff at a youth facility in Maryland because of an incident in which one guard restrained a youth while the three others kicked him and punched him in the face. In January 2004, the U.S. Department of Justice reported on terrible conditions at Arizona’s juvenile detentions centers, including sexual abuse of the children by staff members (and fellow inmates) that occurs “with disturbing frequency” and a level of physical abuse that is ”equally disturbing.”

Total Confinement: Madness and Reason in the Maximum Security Prison

In her book, Ms. Rhodes concentrates her attention on "control units" -- the "super maximum" wings within maximum-security prisons, cordoned off by razor wire. They house inmates removed from the general prison population for breaches of prison regulations or for fighting or harming other prisoners or officers.

These units emerge as, to say the least, hell holes -- black boxes within black boxes where prison officials can make criminals who often are too mentally disturbed to live peaceably in regular cell blocks "disappear," as she puts it.

Control-unit prisoners spend 23 hours or more a day in 8-by-10-foot cells with one frosted window in the shape of a slit. They must withstand constant day-and-night clamor, raving neighbors, ghastly food, racial and other taunts, including encouragement to commit suicide, and predatory aggression, not always at the hands of other inmates. Rape is widespread, as it is throughout the prison system.

The routines and severe forms of constraint of control units, augmented increasingly by electronic surveillance, are so harsh that prisoners cannot be considered "rational actors," Ms. Rhodes argues. In fact, many inmates who are not mentally ill become psychotic under the strain of isolation. The conditions often provoke fear of all other human beings, or antagonism toward them, and prisoners respond with violence or other infractions that prolong their punishment...

Miscounting prisoners undercounts democracy

In 48 states prisoners cannot vote, but the Census counts the nation's mostly urban prisoners as residents of the mostly rural towns that host prisons. Every decade, states use these "phantom" populations to redraw state legislative boundaries and re-apportion political representatives and power accordingly. With U.S. incarceration now setting worldwide records, and the consequences of that falling disproportionately on people of color, the harm to our democracy and civil rights is measurable and profound...

In short, current Census practices allows white rural prison communities to appropriate urban minority residents for the purpose of representation. This runs counter to any idea of equal protection under the law, and harkens back to the repugnant three-fifth's clause that gave the South extra representation for their slaves.
posted by y2karl at 11:27 AM on November 9, 2004

And from

360degrees - Perspectives On The U.S. Criminal Justice System,

a test--

Have You Ever Committed A Felony or Misdemeanor?
posted by y2karl at 11:28 AM on November 9, 2004

The point being that at the discression of your jailers you are likely to not just be inprisoned, but (generally as a male prisoner) you are likely to be raped and infected with STDs that will shorten your life dramatically.

Edit more carefully next time if that's not what you meant to say, n9, but denying that you said it is silly.

And the evidence to support your contention that some large proportion of American male inmates in the 1960s were systematically raped by STD-infected unidentified persons for the purpose of infecting those prisoners with those STDs is precisely...where?

I believe that would be the sound of me asking you to backup what you were claiming.

Wow. This got boring fast.
posted by JollyWanker at 11:54 AM on November 9, 2004

yeah, sure is. Can't imagine why.
posted by n9 at 12:16 PM on November 9, 2004

A very good example (and only one of many) of what I referred to is Tom Cahill, who was raped in prison at the command of his captors while being jailed overnigh for civil disobedience in 1968. He is one of the leaders of Stop Prison Rape. Since you were such a curious soul about the information about this issue I'm sure you'll want to pick up his book. perhaps so you can decide that he is full of shit also. Here are some links about him, the experience that he and others went through and their mission, all found quite quickly with google, which it seems you are loathe to use. If you require some more links I will be quite happy to use this magical resource again. Please let me know.

http://talkleft.com/new_archives/002612.html
http://www.spr.org/en/sprnews/pre2002/doc_99_grandprarie.html
http://www.stopthedrugwar.org/chronicle/182/tomcahill.shtml
http://www.alternativesmagazine.com/10/cahill1.html
posted by n9 at 12:34 PM on November 9, 2004

Jolly, sorry, you are in fact wrong in your reading of n9's first post. Saying that people were shuttled to sections of the system where they were likely to be raped is different from saying they were systematically raped. It really is.

Also - this shit doesn't just extend throughout the adult "corrections" system. It goes on in the juvenile system as well. I saw a news report a while ago where a 15 year old kid was allowed to die from apendicitis. It is difficult to imagine a worse way to die. The attitude that anyone convicted of any crime thereby forfeits all rights is a prevalent and noxious one.
posted by kavasa at 12:52 PM on November 9, 2004

That's like saying, "of course it's true, I read it in the Nation [or National Review, or the Weekly World News]".

Huh?! Where in the world did you get that impression, faze? Um, in the school I went to American History did in fact mean propaganda -- in the exact opposite direction from the Nation and all those Zinn and Chomsky influenced sources. Flag-waving perfection, with the many many evils glossed over. The only person I know who got even a somewhat leftist take had a prof. that taught with a textbook from each side.
posted by e^2 at 3:25 PM on November 9, 2004

"An estimated 180,000 male inmates are raped annually in US prisons - twice the number of all US female rapes in 1999 - according to experts cited in a 2002 Los Angeles Times story."

From here found by googling: "Prisoners are likely to be raped and infected with STDs that will shorten your life dramatically".

It would be nice if we talked about the eight amendment now...
posted by xammerboy at 5:12 PM on November 9, 2004

Probably the easiest thing we could do to minimize (I don't think it will ever be completely eliminated) prison rape would be some basic intelligence in prisoner classification, even on the holding cell level. Let's not house pot dealers and check forgers with rapists and murderers.

I'm as anti-crime and pro-law & order as they come, and I think this shit is fucked up and counterproductive for the prisoners, the guards, the justice system and the general public. I want criminals locked up, sure, but justice =! gratuitous vengeance.
posted by jonmc at 6:14 PM on November 9, 2004

To me this is absolutely cruel and unusual punishment. What's surprising is that by and large people don't seem to have a problem with it. I'm not saying that prison should be fun, but I don't think you should be tortured while you are there. I am feeling more and more out of touch with "mainstream" America.
posted by xammerboy at 6:51 PM on November 9, 2004